Fact Sheet - Restraint orders under the GIPA Act

This Fact Sheet explains the way in which orders to restrain people from making access applications are dealt with under the Government Information (Public Access) Act 2009 (GIPA Act).

The purpose of the GIPA Act

The object of the GIPA Act is to open government information to the public to maintain and advance a system of responsible and representative democratic government.1

The GIPA Act places various obligations on agencies within NSW in respect of the publication and release of the information that they create and hold. The GIPA Act also provides rights for persons to apply for access to government information.2

However, this right of access is not absolute and should not be abused. Part of the object of the GIPA Act and the framework of the Act for enabling access to government information, are the avenues for review of decisions, as well as mechanisms to address misuse of the Act by agencies and citizens, and safeguards to protect both citizens and agencies.

Part 5 of the GIPA Act provides for review of decisions made under the Act. Administrative review by the NSW Civil and Administrative Tribunal (NCAT) (set out in Division 4) is but one of many avenues for review. In respect of its administrative review function, NCAT has discretionary powers that can affect the rights of citizens and agencies under the GIPA Act. NCAT has discretion to make an order to restrain the making of unmeritorious access applications under section 110 of the GIPA Act (restraint order).

Who can apply for a restraint order?

An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application), or by the Minister, or the Information Commissioner.3

On what basis will NCAT make a restraint order?

NCAT may make a restraint order that a person is not permitted to make an access application without first obtaining the approval of NCAT, if satisfied that:

(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and

(b) the applications were made by the same person or by any other person acting in concert with the person.4

How may an application lack merit?

An access application lacks merit if:

(a) the agency decided the application by refusing to deal with the application in its entirety, or

(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c) the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure by the applicant to pay any processing charge payable).5

Section 110(2) of the GIPA Act makes clear that these are the relevant circumstances when considering whether an access application lacks merit.

How does a restraint order work?

A restraint order may be made to apply to all access applications made by the person the subject of the order, or may be limited by reference to any one or more of the following:

(a) a specific time period,

(b) a specific number of applications, whether in total or to particular agencies,

(c) particular kinds of information,

(d) particular agencies.6

A restraint order may be limited to certain types of information, or to identified agencies.7

The agency may, when applying to the NCAT for a restraint order request specific terms or conditions in the order.

The NCAT will consider evidence and submissions made by the parties in relation to the form and content of a restraint order that may be made.

A person who is subject to a restraint order cannot apply to NCAT for approval to make an access application without first serving notice of the application for approval on the agency concerned and the Information Commissioner.8

What can NCAT do if a person is subject to a restraint order?

In deciding whether to approve the making of an access application by a person who is subject of a restraint order, NCAT is to consider, without limitation, any of the following:

(a) whether the proposed application is lacking in merit,

(b) whether the proposed application is frivolous, vexatious, misconceived or lacking in substance,

(c) whether the applicant has engaged in conduct designed to harass, to cause delay or detriment, or to achieve another wrongful purpose.9

NCAT considered the exercise of its discretion as to whether or not to grant approval for access applications, where a restraint order was in place, in Walker v Pittwater Council[2016]NSWCATAD 78 and Walker v Northern BeachesCouncil[2016] NSWCATAD 161.10NCATconsidered that a basis for refusal of leave would be where an application was lacking in substance, for example where NCAT did not have jurisdiction, or the application lacked merit because of a restriction or qualification of the applicant's rights under the GIPA Act.

The number or frequency of access applications a person has made may be relevant when determining whether or not to approve an application, but those factors are less significant than the substance or merit of the application. Unreasonable interference with the agency's operations is not a restriction that the GIPA Act places on the making of an application.

NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.11

What is the effect of a restraint order?

While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.12

If a restraint order is granted, then the person who the order is against is only able to make an access application to the agency once NCAT has approved the access application. This requirement remains in place for the term of the restraint order.

The person must file any future access applications with NCAT and then NCAT will list the matter for hearing to consider whether to grant approval.The restraint order may limit the number of access applications that can be made by the person in a specified period.

If the person who is the subject of the restraint order either makes access applications directly to the agency or exceeds the number of allowable applications in contravention of the order then these applications would not be valid.

Can a person under a restraint order make access applications to other agencies without applying to NCAT first?

Yes, a person who is the subject of a restraint order may make access applications to other agencies without applying to NCAT first. That is, agencies not named in the restraint order.

The circumstances where the person must apply to NCAT for approval to make an access application to an agency are those set out in the restraint order.

NCAT cases dealing with restraint orders

A restraint order has a significant impact on an individual’s right of access to government information. In this regard, Sweeney v AustralianInformation Commissioner[2014] AATA 539isauthority for the proposition that in determining the reasonableness of an exercise of discretion that impacts on an individual, ‘the impact on the individual should be proportionate to the interests the decision-maker is seeking to protect. The NCAT made a restraint order in the following cases:

In respect of an applicant who made 29 access applications to a Council over a 12-month period in Pittwater Council v Walker[2015] NSWCATAD 34.

In respect of an applicant who made a total of 37 applications to a Council and another agency over a two year period in PalerangCouncil v Powell[2015] NSWCATAD 44. Half of the applications made were found to lack merit. In making the restraint order, NCAT had regard to the total number of access applications made (including those applications that lacked merit), the fact that the applications all related to the same subject matter, the amount of information that the agencies had provided in response to the applications, the resources of the agencies, and the conduct of the applicant. NCAT made a time-limited and conditional order under the then section 110(3) of the GIPA Act.

NCAT did not make a restraint order in PortStephens Council v Webb [2017] NSWCATAD 341 because:

Although the applicant's access applications impacted the workload of Council staff and the resources, it could not reasonably be concluded that the access applications that had been made were vexatious.

The applications which did lack merit were relatively focused in nature and did not involve the applicant seeking voluminous information or require the Council to search in multiple places.

The object of the GIPA Act is to give members of the public an enforceable right to access government information and, NCAT was not satisfied it should restrain the applicant's right to make access applications in the circumstances of the case.

The Information Commissioner's role in the NCAT proceedings

The Information Commissioner’s role is as amicus that is, to assist in NCAT’s examination ofthe issues relevant to process and matters of interpretation in respect of the GIPA Act. The Information Commissioner does not appear at the request of or for either party.

The Information Commissioner has a right to appear and be heard in proceedings pursuant to clause 9(4)(a) of Part 5 of Schedule 3 of the Civiland Administrative Tribunal Act 2013 (CAT Act)and section 104(1) of the GIPA Act. This right of appearance applies where an applicant is seeking orders to restrain a person making unmeritorious access applications.